PATNA HIGH COURT ISSUES JUDGEMENT ON NASIMA KHATOON V/S THE STATE OF BIHAR AND OTHER

PATNA, India, Oct. 14 -- Patna High Court issued the following judgment on Sept. 15:

Heard Mr. Bimlesh Kumar Pandey, learned counsel appearing on behalf of the petitioners and Mr. A.M.P. Mehta, learned A.P.P. for the State.

2. The petitioners have sought quashing of the order dated 02.04.2015 passed by learned C.J.M., Bettiah, West Champaran in Bairiya P.S. Case No. 213 of 2013, Tr. No. 3849 of 2015, whereby and where under, the cognizance for the offences under Sections 406 and 420 of the Indian Penal Code was taken against the petitioners.

3. As per the allegation made in the FIR, petitioners had executed sale-deed for five Katha land in favour of the informant appertaining to Khata No. 574, Khesra No. 1025 after payment of consideration amount of Rs. 2,96,000/-. It has been alleged that when the informant went to take possession of the said land, he came to learn that the said land was not in their possession and Jamabandi was in the name of some other person. The informant demanded his money back but the accused persons had refused to return the money back and had assaulted him and his son.

4. Learned counsel appearing on behalf of the petitioners submitted that opposite party is purchaser and petitioners no. 1 and 2 are vendor. The sale deed, which was executed on 04.02.2012 in respect of the land appertaining to Jamabandi No. 1033, Khata No. 574, Khesra No. 1025 measuring total area convened 5 Kathas. Petitioners have claimed that they had claimed the said land on the basis of sale deed dated 20.03.1991, which was executed in favour of husband of petitioner no. 1 by one Shri Bashistha Mani Pathak, which has been brought on record by way of 'Annexure-2' to the application. Petitioner no. 1 is the wife of deceased, namely, Late Raisuddin Ansari and petitioner no. 2 is the son of deceased, namely, Late Raisuddin Ansari. Learned counsel further submitted that the informant had lodged the FIR on 16.08.2013, nearly after six months and in the said FIR, there is no reference, as to whether, the informant had approached to get the said land mutated, whereas, he has alleged that the informant never came into possession of the said piece of land. Learned counsel further submitted that from bare perusal of the allegations made in the FIR, it appears that no case under Sections 406 and 420 of the Indian Penal Code is made out against the petitioners. He further submitted that the FIR doesn't disclose that the petitioners' act can be said to have misappropriated or converted property to his own use dishonestly, rather, by executing valid sale-deed, the petitioner had parted with the five kathas of land. Learned counsel submitted that breach of trust as defined under Section 405 of the Indian Penal Code, punishable under Section 406 of the Indian Penal code is committed by an accused, then in the same breath, it cannot be said that the accused has also committed offence of cheating as defined and explained under Section 416 of the Indian Penal Code, punishable under Section 420 of the Indian Penal Code. It is the further case of the petitioner that the informant can avail remedy before the learned District Court to get the sale deed cancelled. In absence of availing appropriate alternative remedy and considering the allegations purely civil of nature, the entire proceeding arising out of Bairiya P.S. Case No. 213 of 2013, Tr. No. 3849 of 2015, being vexatious is fit to be set aside and quashed.

5. Though the informant has filed his appearance in the present case, but, no one is present today on behalf of the informant.

6. Learned A.P.P. appearing on behalf of the State has vehemently opposed and submitted that the case under Sections 406 and 420 is made out against the petitioners. The petitioners cannot seek quashing of the entire proceeding at the threshold.

7. Heard the parties.

8. It is well settled principle of law that the criminal proceeding and civil proceeding can go side by side, but, if it is shown that the criminal proceeding, which has been lodged, has civil content then in that case, the prosecution set on the basis of FIR or the complaint, must be interfered with. Law in this regard is well settled by the Apex Court in the case of Paramjeet Batra v. State of Uttarakhand reported in (2013) 11 SCC 673, in which, the Apex Court in paragraph no. 12 has held as follows:

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